Oloo v African Independent Pentecostal Church of Africa (AIPCA) Makande & another (Civil Case E199 of 2021) [2026] KEMC 479 (KLR)
The bottom line
#A Mombasa court ruled that evicting a tenant without written notice is unlawful, even if the landlord claims the tenant agreed to leave.
What this practically means
#Executive summary
#Key legal issues
#Whether the tenancy was a controlled tenancy
It was a controlled tenancy under Cap. 301.
Both parties agreed there was no written tenancy agreement. Section 2 of Cap. 301 defines a controlled tenancy to include a tenancy of a shop not reduced into writing. The tenancy was therefore governed by the Act, attracting its statutory protections including the notice requirements of Section 4.
Whether the Plaintiff proved unlawful eviction
Yes; the Defendants failed to demonstrate lawful recovery of possession.
The Defendants admitted taking possession without issuing the statutory notice under Section 4 of Cap. 301 and without a Tribunal order, relying entirely on alleged voluntary surrender. That surrender, being oral, lacked documentary or independent corroboration, so it was not proved on a balance of probabilities. Unlawful dispossession was therefore established.
Whether the Plaintiff voluntarily surrendered possession
No; the Defendants failed to discharge the evidential burden.
The alleged agreement was oral, with no written agreement, minutes, acknowledgement or independent witness. The Plaintiff's immediate protest, demand and prompt filing of suit were inconsistent with voluntary surrender. Oral agreements are enforceable but require clear, cogent and convincing evidence when relied upon to defeat an eviction claim.
Whether the Court had jurisdiction
Yes; the objection on jurisdiction was not merited.
Though controlled tenancy disputes ordinarily fall to the Tribunal, jurisdiction is assessed against the reliefs sought. The Plaintiff sought damages for completed dispossession, not assessment of rent or determination of a tenancy notice. The Defendants also did not raise a preliminary objection, having fully participated in the trial.
Whether the Plaintiff proved entitlement to damages
Yes, to general damages of Kshs. 150,000.
Special damages were neither pleaded nor proved and could not be awarded. General damages were appropriate given the unlawful eviction, the seven-year occupation, the statutory protection of the controlled tenancy, the interruption of business, offset by the Plaintiff's rent arrears and Covid-19 difficulties, and absence of proved specific loss.
Legal principles established
#- A tenancy of a shop not reduced into writing is a controlled tenancy under Cap. 301.
- A landlord need not obtain a Tribunal order where a tenant voluntarily surrenders possession, but the voluntary surrender must be proved.
- An oral agreement of surrender relied upon to defeat an unlawful eviction claim must be clear, cogent and convincing.
- A claim for damages for wrongful eviction is not within the exclusive jurisdiction of the Business Premises Rent Tribunal; jurisdiction is assessed in the context of the reliefs sought.
Court orders
#- 1.A declaration that the Plaintiff was unlawfully dispossessed of the suit premises.
- 2.General damages of Kshs. 150,000 awarded for the unlawful eviction.
- 3.Interest on the award at court rates from the date of judgment until payment in full.
- 4.Costs of the suit to the Plaintiff.
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court; jurisdiction over the damages claim upheld notwithstanding the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 tribunal jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oloo v African Independent Pentecostal Church of Africa (AIPCA) Makande & another (Civil Case E199 of 2021) [2026] KEMC 479 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/479/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.